by RICH CASSIDY on SEPTEMBER 29, 2011
So if as my last post, “Where Should Lawyers Learn How To Practice” suggests, we know how to teach law students to practice law, why aren’t American law schools doing it with every student on a routine basis?
I believe there are two reasons:
First, it is a more expensive delivery model than the standard lecture/Socratic Method that dominates most legal education. My class at Vermont Law School, for example, had 6 students in it. A typical law school class might have a hundred to a hundred and fifty students. Teaching lawyering skills doesn’t have to be done in groups of 6, but one teacher can’t begin to teach as large a group as most law schools usually work with. So, if the student to teacher ratio must go way down, one question comes right up: where would the money come from to do it?
Second, because it is not work that most law professors value and/or want to do. Most law professors are long on academic achievement and short on experience in the practice of law. The kind of practical teaching that I describe needs to be grounded in practice, not just in scholarship.
The accreditation rules for law schools, as written and applied by the American Bar Association, not only don’t require this kind of “skills” legal education, they discourage it. Among other things, the rules protect traditional scholarly law professor jobs by limiting the portion of a faculty that can be made up of adjunct faculty. And it is adjunct, part-time, faculty who are the teachers in touch with the actual skills needed to practice law.
The tenure rules at nearly all schools value traditional legal scholarship (mostly writing about the substance of the law) and discourage faculty who might be inclined to be scholars of skills-based legal education. And so do the professors who apply those rules to aspiring faculty.
The law schools will tell you that over the last 30 years they have come a long way in the direction of teaching law students lawyering skills by involving them in clinical education. To some extent that’s true. But the history of law school clinical faculty experience in succeeding on the tenure track tells a different story: that clinical education is still a step child.
Clinical education alone is no substitute for a well rounded, in-class grounding in lawyering skills. In clinical education, the needs of actual clients have to predominate over the educational needs of students. As a result clinical programs tend to be narrow in scope, and to involve completing routine and repetitive tasks.
In my own clinical experience (I admit, I did it some 35 years ago) I became an expert in sentence computation. I even brought and argued some litigation to challenge the continued incarceration of clients we contended were held after their sentences should have expired. It was a great experience, but far too narrow to really have provided with the basics from which to practice law.
Clinical education really should be the icing on a three layer cake: two years of traditional legal education (providing plenty of time to teach students to think like lawyers and to provide an adequate knowledge base of the substance of the law itself) and a third year of lawyering skills. That third layer ought to be a solid grounding in skills based education topped with a frosting of clinical experience.
Next time: “What Has Legal Education Got to Do with Access to Justice?”
Rich